United States District Court, D. Columbia
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SINCERI GUERRERO, Plaintiff, Pro se, Raleigh, NC.
SINCERI GUERRERO, Plaintiff: Sinceri Keoka Guerrero, LEAD
ATTORNEY, Raleigh, NC.
THOMAS J. VILSACK, Secretary, United States Department of
Agriculture, Office of General Counsel, Defendant: Damon
William Taaffe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR
THE DISTRICT OF COLUMBIA, Washington, DC.
M. COLLYER, United States District Judge.
Guerrero has worked for the U.S. Department of Agriculture
since December 2010. Proceeding pro se, she sues the
Secretary of the Agriculture, Tom Vilsack, in his official
capacity. Ms. Guerrero alleges that she has suffered
continuous harassment, intentional discrimination, and
retaliation due to her age (52) and race (Hispanic/African
American) and that she has been underpaid due to such
discrimination. The Secretary moves to dismiss her case in
part, arguing that Ms. Guerrero has failed to exhaust some of
her claims at USDA before taking them to court. As to others,
the Secretary argues that they were not timely brought or do
not state a claim for relief that is plausible.
Court agrees that some of Ms. Guerrero's claims are
untimely, but also questions whether USDA fulfilled its
obligations to investigate adequately Ms. Guerrero's
charges of discrimination--perhaps because she accused the
Office of Civil Rights, which is the office that investigates
such complaints. And contrary to the Secretary's
position, several of Ms. Guerrero's allegations state a
plausible claim for relief. Because most of the allegations
in the Amended Complaint warrant discovery, the
Secretary's motion will be granted only in part.
facts alleged in Ms. Guerrero's Amended Complaint, Dkt. 2
(Am. Compl.) are taken as true in this procedural posture.
Baird v. Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir.
2015) (citing Brown v. Sessoms, 774 F.3d 1016, 1020,
413 U.S.App.D.C. 328 (D.C. Cir. 2014)). A pro se complaint is
" to be liberally construed" and " however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers." Erickson
v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
Court may also review materials referenced in the Complaint,
" particularly where, as here, the plaintiff has
presented the document to the Court in support of its
claims." Am. Council of Life Insurers v. D.C. Health
Benefit Exch. Auth., 73 F.Supp.3d 65, 104 n.21 (D.D.C.
2014) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d
1052, 1059, 378 U.S.App.D.C. 355 (D.C. Cir. 2007)); see
also Vanover v. Hantman, 77 F.Supp.2d 91, 98
(D.D.C. 1999) (concluding that a court could properly
consider, on motion to dismiss, " various letters and
materials produced in the course of plaintiff's discharge
proceedings" that were " referred to in the
complaint and [were] central to plaintiff's claims"
) aff'd, 38 Fed.Appx. 4 (D.C. Cir. 2002).
Ms. Guerrero's Initial Federal Employment
Guerrero's federal employment began in December 2010,
when she was hired under the Business Management Leadership
Program into the USDA's Food Safety and Inspection
Service (FSIS). Her series and grade were Management Analyst
0343 and AP-3, respectively. AP-3 was equivalent to a GS-11,
Step 5 pay grade. The leadership program was part of a
broader Federal Career Internship Program (FCIP), under which
successful participants would be converted--after a two-year
trial period and a third year of service--into Management
Analysts at the AP-4 pay grade.
was not to be, however, as the FCIP was abolished by
Executive Order effective March 1, 2011. See Exec.
Order No. 13,562 (Dec. 27, 2010). The Office of Personnel
Management directed agencies on how to handle their FCIP
interns: " [A]ll agencies with FCIP incumbents must
convert them to career-conditional or career positions in the
competitive service." OPM, Executive Order 13562 --
Recruiting and Hiring Students and Recent Graduates
(Jan. 5, 2011). More specifically, OPM directed that "
[i]ncumbents who have completed less than one year of
continuous Federal Service as of March 1, 2011 will continue
to be in a probationary period, even after their conversion
to competitive service, until they reach the one year service
mark. . . ." Id. Ms. Guerrero completed her one
year of probationary service in December 2011 and received a
Standard Form (SF) 50 on January 29, 2012, reflecting her new
status as a regular competitive employee and a Management
Analyst 0343, AP-4.
Guerrero spent most of her probationary year assigned to the
FSIS's Office of Civil Rights. Ms. Guerrero claims to
have suffered most of her discrimination at the hands of that
The Alleged Discrimination
alleged discrimination began in January 2011, when Ms.
Guerrero informed her Training Officer, Carmen Rottenberg,
that the FCIP had been abolished and that Ms. Guerrero was
therefore a probationary employee. Ms. Rottenberg replied
that she did not know Ms. Guerrero's status and would
continue to treat her as an intern. As indicated below,
references to Ms. Guerrero as an intern, rather than a
regular employee, continued to plague her FSIS career.
Sait became the Director of the Office of Civil Rights in
March 2011 and promoted Ms. Rottenberg to serve as his Deputy
Director. The Complaint alleges that " Mr. Sait was a
known civil rights violator [and] subject to a settlement
agreement that prevented him from supervising minority
women." Am. Compl. ¶ 13. Ms. Guerrero complained
about Mr. Sait's appointment and asked to speak to FSIS
Administrator Alfred Almanza. She was told that any
communication with Director Almanza would have to go through
in 2011, Ms. Guerrero suggested to Ms. Rottenberg that it was
" excessively expensive" to spend $500,000 on a
Civil Rights Training seminar at the Ritz Carlton in Crystal
City, VA. This suggestion was unwelcome to Ms. Rottenberg,
who " removed Plaintiff's work assignments and gave
them to Amanda Krot, a younger white employee with less
formal education" than Ms. Guerrero but who was also a
Management Analyst 0343 AP-4. Id. ¶ 14. At
other, unspecified times in 2011, Mr. Sait and Ms. Rottenberg
spoke openly of Ms. Guerrero as " merely an old
intern" and required her to take inventory of a filthy
storage room in Beltsville, MD. Id. ¶ 15. Ms.
Guerrero complained about all of this to her second-line
supervisor, Peter Bridgeman, who told her that " she
would be well served if she remained silent about her poor
treatment." Id. ¶ 16.
2011, Ms. Guerrero left the Office of Civil Rights to work in
the FSIS Office of Management. She left that job in October
2011 to work in the FSIS Workers Compensation, Safety and
January 2012, Ms. Guerrero was asked to work on the
Administrative Solutions Project Blueprint for Stronger
Service, located in the Office of the Secretary of
Agriculture. She was still classified as a Management Analyst
0343 AP-4 but worked alongside (and filled the same roles as)
younger, white coworkers who were paid at a higher grade.
When Ms. Guerrero asked for a commensurate increase to a
GS-13 or GS-14 pay grade, she was " told that she was an
intern and ineligible." Am. Compl. ¶ 17. She
alleges further that Ms. Rottenberg conspired with others to
keep Ms. Guerrero from obtaining a permanent position in the
Secretary's Office, and that she was made to sign a form
never used for comparable employees, on which Ms. Guerrero
had to predict what she would learn on the assignment.
November 2012, Ms. Guerrero was reassigned by Mses.
Rottenberg and Myers to FSIS's Labor and Employee
Relations Division (LERD). Despite Ms. Geurrero's best
efforts to remain where she was, she was told that she was
needed in LERD. Ms. Guerrero alleges that that LERD was
" a low performing unit with high turnover and a history
of employee dissatisfaction, including workplace
Id. ¶ 18. During her first few months in the
unit, seven supervisors and other staff left. She also
alleges procedural defects in her reassignment, viz.
that she never received a " letter of notification"
or " a meeting with Human Resources explaining rights
and resources." Id. No adjustment to her pay
was made. When she arrived, moreover, " no one knew what
her responsibilities were nor did anyone provide her with a
job description." Id. ¶ 19. After much
confusion, she was informed that she would perform
labor-relations work as a GS-13.
Guerrero alleges that she then suffered harassment and
discrimination throughout 2013: she was (1) not placed on the
" Agency call list" to be informed of necessary
information; (2) denied free OPM training for her new
position; (3) questioned why she needed to take time off to
vote; (4) questioned why she needed sick leave to obtain a
requested doctor's note; and (5) not given access to
necessary office equipment such as a copier, scanner, and
shared drives. These circumstances imposed great stress and
caused Ms. Guerrero " anxiety and severe crying
Applications to Become a Litigation Specialist
2014, Ms. Guerrero applied for a Litigation Specialist
position at a GS-14 grade. She was not referred as a
qualified candidate, however, because she did not have a
signed evaluation due to the fact that she had no assigned
supervisor to complete an evaluation for fiscal year 2013.
Ms. Guerrero wrote to the Deputy Administrator in August 2014
to complain, and was then granted an interview, but the job
went to someone already considered in the normal course. Two
subsequent applications for GS-14 Litigation Specialist
positions were also unsuccessful.
she applied yet again to become a GS-14 Litigation
Specialist, Ms. Guerrero was notified sometime after October
5, 2014 that she would have to submit a writing sample with
her application. She immediately withdrew her application, in
the belief that the writing-sample requirement was a pretext
because she was " already providing written documents to
the Litigation Unit." Am. Compl. ¶ 20. Ms. Guerrero
therefore thought that " there was no need to supply
more writing samples." Id. She did not get the
Guerrero alleges that she " did not receive a promotion
or equal pay in 2012 while working on the Administrative
Solutions Project with two young white employees even though
Plaintiff performed the same work." Id. ¶
28. She adds that her work at that time was "
acknowledged" as superior by her receipt of the
Secretary's Honor Award. By comparison, Ms. Guerrero
avers that Jaime Edmuds nee Wadzink (a 36 year old white man)
and Chris Nelson (a 35 year old white man) were " both
paid higher and received promotions as a result of the work
performed on the Administrative Solutions Project."
Guerrero first contacted an Equal Employment Opportunity
(EEO) counselor on October 4, 2012, after she learned that
she would be reassigned to LERD from her detail in the Office
of the Secretary. EEO Counselor's Report [Dkt. 6-3]
(First EEO Compl.) at 2. Ms. Guerrero was interviewed by the
EEO Counselor on October 11, 2012. Id. at 1. The EEO
and interview narrative show that Ms. Guerrero alleged a
single discriminatory act: on October 4, 2012, she was
reassigned from the Office of the Secretary to LERD.
Id. at 2, 3. The reassignment would result, in Ms.
Guerrero's view, " in a series change from a
Management Analyst (0343) to a Litigation Specialist (0201),
a Human Resource series." Id. at 2, 3. Ms.
Guerrero " stated [that] she feels the 0201 series is
used to marginalize people of color." Id. at 3.
She asked to remain a Management Analyst with the
Administrative Solutions Project until December 2012, or
" if forced" to leave that project, to be a
Management Analyst in the Office of Public Affairs or LERD.
Id. at 2.
Guerrero filed a formal administrative complaint on November
13, 2012. Complaint of Employment Discrimination [Dkt. 6-1]
(First Admin. Compl.) at 1. She cited the following issues:
assignment of duties; reassignment; harassment; and
terms/conditions of employment. First Admin. Compl. at 1.
Under the heading " What Initiated Thi[s] Discrimination
Complaint," she wrote: " On October 4, 2012 I was
notified by Peter Bridgeman . . . that I had to terminate my
detail and return to FSIS OM as there was a critical need for
my position in my originating office." Id. at
3. Far from her reassignment being the only alleged
discriminatory act, however, the First Administrative
Complaint added that her reassignment was " the final
act in a long string of continual harassment and symptomatic
of blatant institutional racism pervasive at USDA."
Id. Over the course of a seven-page letter attached
to her First Administrative Complaint, Ms. Guerrero alleged
discriminatory acts that had begun in January 2011. First
Admin. Compl. at 6 (" In January 2011 Farook Sait . . .
asked me if I was a Negro. He stated people often confused
him with a Negro because his skin color like mine was dark,
he said." ). USDA accepted only one issue for
investigation: the October 4, 2012 reassignment for which she
had received prior EEO counseling. USDA Letter [Dkt. 6-4]
(First Acceptance) at 1. Near the end of the First Acceptance
letter, USDA advised Ms. Guerrero: " If you do not agree
with the defined claim, you must provide us with sufficient
reasons, in writing, within 7 calendar days of receipt of
this letter." First Acceptance at 2. Ms. Guerrero
challenged that letter two days after she received it:
[A]lthough I agree with the basic summary written in the USDA
FSIS Civil Rights Acceptance letter that I received May 13,
2013, I want to ensure the previous persistent discrimination
and harassment that I described in my November 15, 2012 EEO
complaint summary are acknowledged. The basic statement as
written and provided by USDA FSIS Civil Rights does not
acknowledge the ongoing nature or the severity or seriousness
of the previous incidents that led up to the initiating
incident, the reassignment. I am writing this to prevent
Opp'n, Ex. C [Dkt. 9-2 at 23] (May 15, 2013 Letter from
Ms. Guerrero to EEOC).
Guerrero contacted an EEO counselor again on January 24,
2014. Complaint of Employment Discrimination [Dkt. 6-6]
(Second EEO Compl.) at 1. She complained of reprisal, in the
form of a " fully successful" rating on her 2013
performance appraisal, and unequal pay because " when
she began working as a Labor Relations Specialist" on
November 5, 2012, she was not " compensated at a GS-13
though her male coworkers [were]." Id. at 2.
Another EEO interview and counseling session were conducted
and another report written by the EEO counselor. Id.
Guerrero filed a Second Administrative Complaint on March 13,
2014, which largely mirrored her Second EEO Complaint.
Complaint of Employment Discrimination [Dkt. 6-5] (Second
Admin. Compl.) at 1. She again alleged retaliation for her
October 2012 complaint in the " fully successful"
rating on Ms. Guerrero's 2013 Performance Appraisal,
which was prepared without giving her an opportunity to
submit her accomplishments or meet with her reviewing
supervisors. The Second Administrative Complaint also
included an alleged violation of the Equal Pay Act because
she should have been paid as a GS-13 when she was assigned to
LERD in November 2012. Ms. Guerrero sought back pay.
on the Second Administrative Complaint, USDA accepted three
issues for investigation on June 16, 2014: (1)
under-compensation since November 5, 2012; (2) fully
successful rating on Ms. Guerrero's 2013 Performance
Appraisal; and (3) " acts of harassment" on "
unspecified dates . . . in that a management official
consistently referred to her as an 'intern.'"
USDA Letter [Dkt. 6-7] (Second Acceptance) at 1. As before,
the Second Acceptance advised: " If you do not agree
with the defined claims, you must provide us with sufficient
reasons, in writing, within 7 calendar days or receipt of
this letter." Second Acceptance at 2. Ms. Guerrero wrote
no such letter.
herself, Ms. Guerrero filed suit in this Court on December
12, 2014 and amended her complaint six days later.
See Compl. [Dkt. 1]; Am. Compl. [Dkt. 2]. She
alleges violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and seeks
declaratory relief under the Declaratory Judgment Act, 28
U.S.C. § 151. Specifically, she relies on 42 U.S.C.
§ 2000e-16, which prohibits " any discrimination
based on race, color, religion, sex, or national origin"
in personnel decisions made by the federal government, as
defined. At the time the Amended Complaint was filed, Ms.
Guerrero was a 52-year-old Hispanic/African American female.
Ms. Guerrero also claims discrimination based on her age,
which is prohibited by the Age Discrimination in Employment
Act, 29 U.S.C. § 633a (ADEA), although the Amended
Complaint cites only Title VII for this claim.
complains of disparate treatment because similarly-situated
employees of other races or ethnicities (under Title VII) and
younger in age (under the ADEA) were treated better than she.
Count I also contains an allegation of disparate pay.
II alleges intentional discrimination and the knowing failure
of USDA managers to provide her with any remedy for
discriminatory actions. It contains further allegations of
disparate treatment and complains about Ms. Guerrero's
unsuccessful attempts to obtain a job as a GS-14 Litigation
III alleges a violation of the Lilly Ledbetter Fair Pay Act
of 2009, which amended Section 706(e) of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-5(e) and the ADEA, 29 U.S.C.
§ 626(d), as well as other laws. The Lilly Ledbetter
changed what it means for a discriminatory compensation
practice to " occur." As amended, the law now
provides that a discriminatory compensation practice occurs
"  when a discriminatory compensation decision or
other practice is adopted,  when an individual becomes
subject to a discriminatory compensation decision or other
practice, or  when an individual is affected by
application of a discriminatory compensation decision or
other practice, including each time wages, benefits, or
other compensation is paid, resulting in whole or in
part from such a decision or other practice." 42 U.S.C.
§ 2000e-5(e)(3)(A) (emphasis added); 26 U.S.C. §
626(d)(3) (emphasis added). The amendment was made applicable
to discrimination by federal government agencies. 42 U.S.C.
III also complains the Ms. Guerrero did not receive a
performance bonus in 2013; that she was denied the
opportunity to take leadership courses offered to other
Management Analysts; and that Mses. Myers and Rottenberg
intentionally seated Jackie Shamblin across from her to
intimidate her. Mr. Shamblin was the former Director of Human
Resources who lost his position after he threatened to use a
taser on his staff. Am. Compl. ¶ 38.
Secretary moved to dismiss, or alternatively for summary
judgment, on February 6, 2015. Mot. to Dismiss [Dkt. 6]
(Mot.). Ms. Guerrero filed an opposition, Dkt. 9 (Opp'n).
The Secretary filed a reply, Dkt. 10 (Reply), and the motion
is now ripe for resolution.
only statute cited in Ms. Guerrero's Amended Complaint is
Title VII. It is clear, however, that her
allegations implicate several others. And because Ms.
Guerrero repeatedly, and broadly, alleges "
discrimination" and " retaliation," it is
necessary to set forth the applicable standards under each of
the relevant statutes.
Discrimination under Title VII
VII of the Civil Rights Act of 1964, as amended by Equal
Employment Opportunity Act of 1972, prohibits status-based
discrimination in the federal workplace. It generally
prohibits a federal employer from making any " personnel
decision" based on an employee's race, color, sex,
religion or nationality. See 42 U.S.C. §
2000e-16; Baird, 792 F.3d at 168. The " two
essential elements of a discrimination claim" under
Title VII are " that  the plaintiff suffered an
adverse employment action  because of the plaintiff's
race, color, religion, ...